United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 883_95_2907

Appeal No. EAT/883/95

EAT/884/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 24,25 & 29 July 1996

MR JUSTICE BUCKLEY

MISS A MADDOCKS OBE

MRS M E SUNDERLAND JP

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BRITISH TELECOMMUNICATIONS PLC          APPELLANTS

MR A THOMPSON          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR J BURKE QC and

MR R LEMON

(of Counsel)

The Solicitor

BT Group Legal Services

BT Centre

81 Newgate Street

London

EC1A 7AJ

For the Respondent MR M J DUNN

(of Counsel)

Messrs Donaldson McConnell & Co

Solicitors

Castle Chambers

Castle Street

Lisburn

Northern Ireland

BT27 4SR


 


MR JUSTICE BUCKLEY: Mr Arthur Thompson, the Respondent before us, commenced employment with British Telecommunications, the Appellant, some time in 1985. He became a highly placed manager and was very successful and qualified. From about 1990 onwards he was the UK Marketing Manager and from then until 1993 was working in London, although resident with his family in Northern Ireland.

He had some history unhappily, certainly during 1993 of stress related symptoms, notably severe headaches. In or by October 1993, what were found by the Industrial Tribunal to be dramatic events in his life occurred, in particular that he did not attain a position that he expected and that about the same time a very close colleague and line manager had moved on and Mr Thompson felt somewhat isolated in that he had no one to talk to and it appears, probably because of the stress he was under, that he did not discuss these matters at home with his wife.

By 1 November, his stress symptoms had re-surfaced, clearly with a vengeance, and he was unable or felt unable to work any further. It was his wife who telephoned the Appellants on 1 November, on his behalf, to indicate that he was ill. We do not need to go into events thereafter in any detail, but the upshot of this illness was that on 7 December, British Telecom wrote a letter effectively terminating his employment.

Mr Thompson took his case to the Industrial Tribunal sitting at London (South) in June 1995. His complaint was that he had been unfairly dismissed. The unanimous decision of the Tribunal was that he had indeed been unfairly dismissed. There is no appeal against that decision before us today. However, British Telecom had argued that Mr Thompson had contributed towards his dismissal. The Tribunal rejected that argument entirely and on that point British Telecom does appeal to this Tribunal.

The Tribunal's finding, having recited the evidence that was before them to which we will return, is to be found essentially in paragraph 28, where they say this:

"28. We find therefore, on the basis of this evidence, that Mr Thompson was a person who was in fact disabled from handling his own affairs throughout the period of his absence. That is why his wife was handling his affairs on his behalf."

A little later on, when the Tribunal specifically or expressly turned to consider the argument about contribution, they say this.

"42. ... In the context of dismissal during absence for sickness it must be the case that if there is a finding such as we have made, [we take it that is a reference back to paragraph 28 that we have just quoted] that the employee was wholly and genuinely disabled from looking after his own affairs, that cannot be any basis for a finding that he was in some way blameworthy in respect of the dismissal which subsequently took place."

And finally, in paragraph 44 the Tribunal states:

"44. Based on our finding about his actual state of health, we find that Mr Thompson was in no way at all to blame for the decision made to terminate his employment and there should be no reduction of any compensation due to him on that basis."

The issue raised squarely by the appeal on that aspect of the matter is whether that finding was perverse. Mr Burke, who has appeared for the Appellants, submitted that we should accept the finding that we have recited a face value, in particular at paragraph 28 and 42, that he was disabled or, as it stated in paragraph 42 "wholly disabled" from handling his own affairs throughout the relevant period and that we should not water that down in order to find evidential support for a watered down version.

That argument has, of course, much force and in principle we accept it. However, the finding about disability and the use of the word "disability" has to be construed sensibly without, we hope, unreasonable watering down in the context of this decision. The question after all for the Tribunal was whether Mr Thompson's mental state was such that he could reasonably be expected to discuss the situation of his illness and his circumstances with his employers. We read "disabled" in that context as meaning "disabled from doing that". Our conclusion is that there was evidence to support that finding. It is not for us to give our own view of the evidence if there is evidence upon which a reasonable Tribunal could have come to that decision, it is not for us to interfere.

The Tribunal took as its starting point on this and, quite rightly in our judgment, Mr Thompson's own evidence, which they deal with in paragraph 24 of their decision, they state that they accepted his evidence which was, of course, entirely a matter for them; they described him as an honest witness, clearly trying to be helpful. They made allowance for the fact that they judged him still to suffer some pain from his experiences and they put it colloquially, "aimed off perhaps a bit for that", again quite sensibly. But their conclusion was stated in these terms:

"But we are satisfied that, as far as his own descriptions of his symptoms are concerned, his account is reliable and that account was clearly of a person who had become unable to look after his own affairs."

That was direct evidence of the state that he was in at the material time. It was not contradicted by evidence, medical or otherwise, and strictly speaking the Tribunal would have been entitled to found on that evidence alone. It might have been unusual to do so on a topic which clearly begged for some medical input.

However, the Tribunal again correctly in our judgment, went on to consider whether the medical evidence such as it was before them, did in truth lend any corroboration or support to Mr Thompson's own account. They looked at the medical evidence and they decided that it did. Mr Burke took us through the evidence in an attempt to persuade us that the medical evidence did not come anywhere near supporting the words or the conclusion "wholly disabled". That submission, to some extent, we accept.

It appears that neither side has really asked their doctors the direct question about the extent to which he could reasonably be expected to communicate with his employers during this period. It is not, therefore, perhaps surprising that the medical evidence, as it does not deal with that, does not support or contradict the contention. We can see nothing wrong with the Tribunal's approach of looking at the medical evidence to see whether there was, at least, some support to reinforce the view they had taken of Mr Thompson's own evidence.

The medical evidence (as we say) just as it was, which comprised records from his GP and other reports, clearly indicated someone suffering from chronic symptoms, severe stress related symptoms and given the other evidence, we feel the Tribunal were entitled to regard it as at least some corroboration.

There were other snippets in the evidence which also corroborated the general view that they had come to. The starting point, I suppose, was Mrs Thompson's own telephone message. In other words, the position right from the outset was, unless it was a charade, and there is a clear finding that it was not i.e. Mr Thompson was giving honest evidence, he clearly was unable or felt unable to make the first communication and his wife did it for him and, indeed, requested no contact directly to Mr Thompson. She described him as ill and not talking about his experiences and going to be in contact with his doctor.

Doctors were involved. British Telecom communicated with their own Regional Medical Officer, Dr McCrea, who eventually was put in touch with Mr Thompson's own GP and nothing emerged from that, which in any way contradicted the fact that Mr Thompson was ill.

There is also the fact that when the letter of dismissal was sent on 7 December, Mrs Thompson viewed her husband's condition in such a way that she did not show him the letter. That was on the advice of Dr McCrea, British Telecom's own Medical Officer and his advice was based on the symptoms, presumably related by Mrs Thompson. Mrs Thompson was not called to give evidence, but again it appears that no one challenged the account of the symptoms and presumably the Tribunal were satisfied they were in line with Mr Thompson's own evidence and again one sees that the medical evidence is not, in any way, contradicting the state of affairs.

So, all in all, we are satisfied that there was a sensible evidential basis for the decision that the Tribunal came to. We do not seek to undermine it in any way, we simply remind ourselves that our task is to see whether it was a decision that was open to them and not to try and form our own view on the evidence they had. In all, we certainly cannot say that the conclusion of the Tribunal was perverse and that appeal is therefore dismissed.

That is not the end of the matter because the Tribunal reconvened on 9 June 1995. Mr Thompson expressed a desire to be re-engaged by an order under section 69 of the Employment Protection (Consolidation) Act 1978.

It appears that, at the outset, reinstatement was requested but in the course of the hearing the Tribunal state, and it has been accepted, reinstatement was not possible and therefore, the Tribunal was considering re-engagement. The Industrial Tribunal heard further evidence from Mr Thompson and from a Mr Mason on behalf of the Appellants and they also had before them a report from Mrs Suzanne Carson, a Clinical Psychologist, under whose care the Respondent was and, so far as we know, remains.

The order that the Tribunal made is important because some aspects of it at least have given rise to the appeal. They made an order for re-engagement and it is against that order that British Telecom also appeal. The order was in these terms and we quote from the Tribunal's decision:

"1. It is ordered that the Applicant be re-engaged by the Respondents.

2. The nature of the employment the subject of this Order is a managerial position in marketing.

3. [They dealt with remuneration].

4. The Respondents shall pay to the Applicant a sum equivalent to the arrears of pay for the period between the date of termination of employment and the date of re-engagement.

5. [Deals with pension entitlement].

6. The date by which this order must be complied with is 14 days after the date on which Mrs Susanne Carson certifies in writing that the Applicant is fit to return to full-time employment in the position referred to in this order."

Section 69(4) of the Act includes these words and it is dealing with re-engagement:

"69(4) ... on making such an order the tribunal shall specify the terms on which re-engagement is to take place including -

(d) any amount payable by the employer in respect of any benefit which the complainant might reasonably be expected to have had but for the dismissal, including arrears of pay, for the period between the date of termination of employment and the date of re-engagement;

(f) the date by which the order must be complied with."

Mr Burke's submission is that at paragraph 6 of the order, which we have quoted, does not comply with section 69(4)(f). He does, incidentally, also submit that at paragraph 4 of the order does not comply with (d) of section 69(4) either.

Mr Burke's submission is along these lines, that it must be assumed that the Industrial Tribunal made the order in the terms they did deliberately; that is in the sense they were unable to give a precise date or even a date to be gleaned from an order in terms of "within 28 days" or "within three months" or some such and that because the Tribunal were unable to make an order in the terms which are demanded by the statute, they should not and, indeed, could not lawfully make an order and consequently, we should allow the appeal. He re-states that submission quite legitimately in this way; that the fact that they are unable to comply with the order illustrates that it was not practicable for them to do so. If not, it is certainly the law that it must be practicable for the Tribunal to make an order even at what has come to be referred as "Stage 1 of their deliberations".

We accept that submission by Mr Burke, subject only to this; that we have considered, in particular ,whether one particular chink or link in his argument is sustainable, that is that we should infer or assume that the Tribunal made the order as they did for the reasons that Mr Burke has submitted.

There is some force in the submission that we should take the order at face value; that we should assume that the Tribunal would have had the terms of section 69(4)(f) in mind and that, therefore, if they had been able to comply with the requirement to give a date, they would have done so. We do not regard that argument as conclusive, but certainly it is one which has some force and we would not lightly assume that the Tribunal had not had the terms of (f) in mind.

So we have gone on to look, with some care, at the evidence that both Mr Burke and Mr Dunn, who has appeared for Mr Thompson, drew to our attention. The main piece of evidence really was Mrs Carson's report which the Tribunal had before them on this occasion. They summarised that report in paragraph 6. It may be more helpful, albeit the summary, so far as we can see, is accurate and no one has challenged it, but we will just quote from the actual report itself as opposed to the Tribunal's decision.

Mrs Carson, under her Summary and Conclusions, and we should perhaps have said that this report is dated 31 May 1995, in other words it had just been obtained before, and presumably for the purposes of the Tribunal hearing. She recites that Mr Thompson continued to suffer stress related symptoms and indeed, that certain tests that she carried out indicated that his position had been exacerbated by what she described as, "the ongoing nature of the situation at work and the action" (namely the Industrial Tribunal hearing) that he had felt bound to pursue. She comments that, despite psychological intervention, the position has not been resolved and his stress reaction has become chronic and severe. We now quote the rest of her last paragraph:

" ... It is my opinion however, that Mr Thompson is highly motivated to return to work. If he were to receive ongoing psychological intervention from myself and if support were made available to him at work, he would eventually make a good recovery and would be fit to return to work. It is not possible to say how long this recovery would take given the severe emotional impact that this situation has had on his confidence, self esteem and general well being."

Mr Thompson's own evidence on fitness to return to work did not take the matter really any further, because the Tribunal recorded simply that he had complete faith in the reliability of Mrs Carson's advice. In other words, it was really Mrs Carson's evidence that was decisive on this matter. It is worth noting that Mrs Carson was not called to give evidence and the Tribunal, through Mr Thompson, accepted certain other matters that she had told him about how he could get back to work and we return to that in a moment.

We have had some difficulty and there has been some debate before us as to what Mrs Carson's report means or how it should be interpreted. First of all, it is noteworthy that it does not indicate when or less still, give any date as to when Mr Thompson might be fit to return to work in the first place. She refers to "ongoing intervention and support available at work" which seems to suggest that he returns to work in some shape or form, but then says, if that happens, i.e. her support and support at work, he would eventually make a good recovery and be fit to return to work. On the face of it a contradiction, which we can resolve only by interpreting "being fit to return to work" as if she meant "fit to return to full-time work". What she seems to envisage is a return to work at some unspecified date, continuing psychological support from herself, support of some form at work and then that process leading to a return to full fitness and full work.

That interpretation fits in with paragraph 7 of the Tribunal's Reasons where they recite what Mr Thompson said Mrs Carson had told him and that is that returning to work would involve setting up some partnership with another executive who had been through a similar situation within the organisation and avoiding situations at work to which he would be particularly vulnerable, such as working long hours or failing to manage stressful situations. There is no indication who this other party at work may be or, indeed, any finding as to whether that is, or would be, a practicable proposition.

Mr Dunn submitted that, despite the lack of specific date, clearly the Tribunal did have in mind a reasonably short time scale and there is reference in paragraph 8 to the Tribunal's view that in the context of so many years (and they are referring to the total employment of Mr Thompson) that it seemed to them to be a relatively minor matter that for a few weeks he might not be able to work to the fullest extent possible. Mr Dunn drew on that to support his submission that the overall time scale for this easing back to work was not a long one in the view of the Tribunal.

However, the fact remains that there is no indication from Mrs Carson or from Mr Thompson, so far as we can see, relying on the reasons as to when he could return to work and there is no clear evidence direct from Mrs Carson as to the prospects of success if this part-time return, working as it were in tandem with another executive was to be tried, or indeed, how long that would take.

In the light of that state of evidence we can well understand why the Industrial Tribunal felt or might have felt unable to make an order in the terms of section 69(4) and why, indeed, they made the order in the terms they did. In the light of that evidence, which we have taken from their own reasons, we do return to the first point we made and conclude that it is right for us to assume and proceed on the basis that they did make the order deliberately in view of the state of the evidence. In other words, that they must have concluded that they could not sensibly put a date in the order.

That being so, Mr Burke's argument holds good, namely, or to this extent that, if an Industrial Tribunal feels unable to make an order in the mandatory terms that are set out in subsection (4), it cannot in law make an order at all. That is simply illustrating, in other words, that it is not practical for them to do so.

We did mention, for good measure, Mr Burke drew attention to paragraph 4 of the order. We will not repeat the words or the terms in which that is, but we accept Mr Burke's submission that that is not a compliance with subparagraph (d), which calls for an amount to be specified as payable by the employer. Again, the reason the Tribunal could not specify that was, of course, because the time scale was left open-ended. That is enough for us to allow the appeal against re-engagement and to order that the matter should go back to the Industrial Tribunal to assess compensation. We would add a few more words only because both Mr Dunn and Mr Burke have argued the matter more fully before us than perhaps this short judgment might illustrate.

Mr Burke pointed out that because the time was open-ended, based on the certificate only of Mr Thompson's own consultant or expert, that that was thoroughly unsatisfactory, even unfair, because the employer would be asked to take back into employment an ex- employee who had been away ill with no opportunity to have their own medical advice. Further, that an order based on such a certificate was calculated to lead to future disputes and uncertainty. As it happens, we have been shown de bene esse at least what was put forward by Mr Dunn as a certificate from Mrs Carson, Clinical Psychologist, dated 11 August, that is some two months after the Industrial Tribunal's decision. We do not need to go into it all but it does say this:

"In response to the decision of the Tribunal dated 9 June 1995, I am of the opinion that Mr Thompson is now ready to begin a back to work programme."

That illustrates the point well. The parties are immediately in dispute. Mr Dunn says that is a certificate or probably would if the matter had arisen directly. Mr Burke would have said that is not a certificate. Indeed, he did make that submission and we, had it been necessary, would have held that Mr Burke was right. Paragraph 6 of the order refers to "14 days after the date on which Mrs Carsons certifies he is fit to return to full-time employment." This certificate simply says or certifies that he is "ready to begin a back to work programme". In view of the earlier evidence which we have referred to, that clearly is not a certificate, that he is fit to return to full-time employment. There is no other medical evidence before us at all and more importantly, there was no certificate before the Industrial Tribunal and that illustrates the unsatisfactory nature of the order that was made.

There are other, more general considerations which have been touched on, namely that this Applicant was in a senior management position in Sales and Marketing. This Tribunal does not need to be told that Sales and Marketing nowadays is a highly stressful and active area of any business, certainly of the Appellants.

This Applicant had a stress history that we have referred to. In part that was generated by his failure to get a particular post or promotion; there were outstanding problems between the parties, which gave rise to considerable dispute. Those problems related to re-location and certain disputes over the furnishing of the Applicant's office and 19 months had passed between the time of sickness and the Industrial Tribunal and at least at that time there was certainly no certificate of immediate fitness to return to work.

Also one would have thought, and we do think, that it would be surprising if the sort of job that this Applicant, Mr Thompson, had enjoyed, could be found by British Telecom of 14 days notice from some wholly uncertain time in the future. We also regard the description that Mr Thompson gave of Mrs Carson's idea, namely that he would go back to work with some unspecified mentor who will guide him through the early weeks or months and avoid stressful situations and working long hours and so forth, as also being illustrative of the impracticability of ordering a re-engagement in this case.

Last, but not least, this type of business is likely to have moved on, if not dramatically, at least to some significant extent with the passage of time. Had it been necessary, we would have felt that this Tribunal perhaps did not consider sufficiently all the circumstances, some of which we have just touched on, before reaching their conclusion on practicability. They seem to have focused almost exclusively on the state of Mr Thompson's health and their view that a job could be found. That latter consideration was not based on any positive evidence or view that they stated, as opposed to a negative which was the fact that they utterly rejected evidence given by Mr Mason for reasons which are set out in their decision, and we do not need to rehearse in detail. It is unfortunate to find a situation in which a witness and the Tribunal clearly disagrees as strongly as the two did on this occasion.

In all, it is not necessary for us to pursue the submission that Mr Burke had as an alternative, namely that the decision to re-engage was perverse. We do bear in mind that this Tribunal saw and heard the witnesses and we do not under-estimate the advantage that they had over us in that respect, but for all the reasons we have indicated, we do feel it right to express some surprise that the order of re-engagement was thought to be practicable in the circumstances of this case.

It would not have struck us as being a practical proposition, but for the reason which we have already given on Mr Burke's first argument, this appeal must be allowed and the order for re-engagement we feel should be set aside and the matter go back to the Tribunal for compensation to be assessed.

In those circumstances the cross-appeal, which was based on the omission of certain other benefits to Mr Thompson, we do not think arises.